Constitutional Law Group September 23, 2016 Europe, European Union, UK government, UK Parliament

Philip Joseph: Brexit: A View from Afar

Editors’ note: In this blog post the distinguished New Zealand jurist, Professor Philip Joseph, reflects upon the fall-out from the referendum vote on 23 June. The post is a precis of a longer paper which can be read here.

An uneasy truth: Brexit was borne out of sheer political miscalculation and an unshakable belief that the Remain vote would prevail. David Cameron gambled and lost. He will be remembered as the Prime Minister who took Britain out of Europe. Then, the reality dawned: there was no contingency plan should the unthinkable happen. It was the Cameron Government’s considered view not to instruct its key ministries to plan for the possibility of a Leave victory. This was astonishing politics. The House of Commons Foreign Affairs Committee termed the lack of forward planning “gross negligence”. The fallout precipitated an immediate leadership vacuum: Cameron resigned as Prime Minister, Boris Johnson quit the leadership contest over who would replace Cameron as Prime Minister, and Nigel Farage resigned as the leader of UKIP. The Government now faces the institutional challenge of finding seasoned international negotiators who can stare down their EU counterparts.

The longer paper which I have written examines Article 50 of the TEU, which is the trigger mechanism for a Member State to exit the Union. This paper asks: What steps may, or must, be taken in order to invoke Article 50 and commence the withdrawal process? There are two schools of thought: one is that the Government cannot commence the Article 50 process without prior legislative authorisation; the other is that the triggering of Article 50 would be an exercise of the royal prerogative in external affairs requiring no legislative authorisation. Both views are plausible, although one is clearly preferable to the other. The European Communities Act 1972 was the legislative vehicle that took Britain into Europe, and this Act remains on the statute book to this day. The prerogative is necessarily subject to and controlled by legislation, which means that the prerogative cannot be used to trigger Article 50 without Parliament first providing the necessary authority. Events are moving quickly. The contested legal position is now the subject of a legal challenge in the courts, with a fixture date set down for mid-October. These might be the most important proceedings to come before the British courts in a very long while. The prospect of the challenge succeeding would sorely test the resolve of the majority of parliamentarians, who remain firmly pro-EU. The paper observes: “We simply do not know which way the Commons would vote.” It also ends on a sober note: “So, at every level of British institutional life, things are not as settled as they might be.”

Philip A. Joseph is Professor of Law at the University of Canterbury, New Zealand.

(Suggested citation: P. Joseph, ‘Brexit: A View from Afar’, U.K. Const. L. Blog (23rd Sept 2016) (available at https://ukconstitutionallaw.org/))

12Comments

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1

Steve Gwynne on September 23, 2016 at 9:15 am
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Brexit is by far the best thing that has happened to Britain for years. It has reinvigorated politics since eu treaties subsumed British politics into managers of EU law. Brexit has reinvigorated debate about environmental policy, housing policy, farming policy, fishing policy and local democracy. It has heloed revitalise essential discussions about immigration and liberal policies that motivate rapid social change. It has caused a reflection of Britain’s resilience and its role within the emerging global society. It has pioneered the idea that cooperation is more worthy than collaborating in order to compete. Last but least it has shown the depth of infantility of the EU Commission and its lack of responsiveness to national concerns.

Cameron will remembered as a hero who had the courage to lead Britain out of a deeply dysfunctiinal institution.
- 2
  
  Hugh R Joking on September 23, 2016 at 1:27 pm
  Reply
  
  Sarcasm is the lowest form of wit.
3

eanpengmas292 on September 23, 2016 at 9:49 am
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Thank you for a very lucid and pithy summary of the legal standing concerning the power negotiation to invoke Art 50. Some questions arise. What happened to the democratic right of the people’s referendum for Brexit and who wield the ultimate power behind the Parliament authority? The case of invoking Art 50 throws much light on the apparent ambiguity in the British constitution.
4

David John Hutchinson on September 23, 2016 at 11:26 am
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Thank you for this very lucid summary. Could I refer you to Robert Craig’s article posted on 8 July 2016 and specifically to the following extract:

A fourth option

This note argues, by contrast, that the prerogative and s 2(2) ECA are not relevant to the exercise of the executive power to trigger exit from the EU. Nor is there any need for fresh legislation. This is because there is already legislation which has been passed by parliament which provides statutory authority for executive action in this area. It therefore suspends, or places into abeyance, any prerogative source of authority to act and instead this legislation, not the prerogative, forms the legal basis for the power of the Prime Minister to trigger exit from the EU.

The legislation is the European Union (Amendment) Act 2008 (‘the 2008 Act’) which incorporates the Lisbon Treaty into UK law and, incidentally, gives it overriding legislative force with respect to past and future ordinary legislation by inserting it, in terms, directly into s 1(2) of the ECA. Any action under Article 50, as one section within the Treaty incorporated into UK law by the 2008 Act and the ECA, therefore must be taken under the relevant statutory authorisation and operate within the four corners of the relevant legislation.

In addition, s 6 of the 2008 Act (later replaced by the European Union Act 2011) specifically lists actions under the Treaty which require further parliamentary approval before a Minister can undertake them. Article 50 is not among those actions listed in the 2008 or 2011 Acts.

Article 50 is therefore already incorporated in UK law by primary legislation. Executive discretion to use it has therefore already been authorised and approved by parliament.

The next issue is the legal criteria for triggering exit from the EU under the terms of Article 50 in UK law.

Article 50

So far, I have seen no cogent refutation of his argument that triggering Article 50 by using crown powers does not require fresh legislation. Would you like to comment on this specific point?
5

Dennis11 on September 23, 2016 at 12:04 pm
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Why cannot foreigners accept that direct democracy prevails over party politics and that as we have voted to leave the EU no politicians or lawyers are going to influence that decision. Brexit allows us to go back to pre-1972 preferential tariffs on NZ produce. Which in 1972 I helped to overturn.
6

Michael Wilkinson on September 23, 2016 at 4:06 pm
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There is another scenario.

The Act of Parliament allowing the referendum made no reference to anything other the question ‘say in’ or ‘leave’ the EU; Article 50 is a ‘consequence’ of a leave vote.

The Act was silent on any issue other than in or out of the EU. One cannot rely on anything other than that contained within the Act itself.
7

Willson, LL.B on September 23, 2016 at 7:07 pm
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Participants in BBCQT seem either ignorant of or reluctant to mention the legal action(s) re the procedure for “triggering” Article 50 notification that are IMO delaying the PM’s “trigger finger”. I welcome these challenges; would love to have had the chance to hear or read the opinions of the late Learned Lords Bingham and Denning on this vital constitutional law issue. Would love to see those “Leaping Leavers” of Sunderland (er, remember Nissan) brought down to earth, at least for a few months…
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Stephen Brockway on September 28, 2016 at 12:24 am
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I was expecting to read a learned article from a Professor of Law. Instead, I couldn’t get past the emotional clap-trap of the first 3 pages. “Unthinkable”. “Breathless”. Legal concepts I am unfamiliar with. Simply another insult-ridden article aimed at the Brexit voters that is frankly unwelcome and unnecessary.
9

mark hardy on September 28, 2016 at 2:40 pm
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Readers might be interested to know that the Grounds of defense and skeleton arguments have been ordered capable of being made public before the Court hearing.

Bindmans are making the documents, including the Court order, available on their website at:

http://www.bindmans.com/news/peoples-challenge-group-win-right-to-publish-secret-government-defence-in-b
10

Sean Feeney on October 1, 2016 at 12:39 pm
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The application was not granted in full.

The 27 September 2016 Order clarifies the parties are “not prohibited”, inter alia, from publishing “their own skeleton arguments”.

Since the defendant appears to have resisted the application, it seems unlikely the defendant will publish their own skeleton, and the Order appaears to clarify the other parties are “prohibited” from publishing it.

Click to access Order_sealed_28_9_16.pdf
11

Sean Feeney on October 14, 2016 at 3:09 pm
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What is most notable about this contribution from “distinguished New Zealand jurist, Professor Philip Joseph” is the remarkable lack of reference to well-known local law, namely the landmark House of Lords judgment in Pepper v Hart [1993] AC 593.

The potential relevance of this authority is increased by the fact that the defendant’s skeleton argument, published after this blog post, quotes from Hansard, giving clear statements from Government proposers that the intention of the Bill was to provide for a “decision”; and by the fact that the contention that the referendum was “advisory” is in issue in the proceedings.

Other litigation parties rely on Parliamentary materials such as a Commons Briefing Paper and a report of the House of Lord’s Constitutional Committee to evidence their submission that the referendum was “advisory”.

The Pepper v Hart test on admissibility was applied,by the Supreme Court, and therefore reaffirmed, in Assange (Appellant) v The Swedish Prosecution Authority (Respondent) [2012] 2 AC 471.
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Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association on January 25, 2017 at 9:17 am
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